Here is a link to avid CAAF follower Mike Doyle’s post over at Suits and Sentences about the District Court opinion in the Luke case (opinion here). Our prior coverage of the Luke case at CAAF is here and USACIL issues involving former USACIL analyst Phillip Mills is here.

One minor issue with the article. The last paragraph:

In his decision issued late Thursday, Contreras said the military appeals court “carefully assessed” all the evidence presented, and he implicitly praised the “thoroughness” of the military court’s work, saying he would not “substitute (his) judgment” for that of the military courts.

The quote he is referencing is, using highly familiar language similar to APA cases, “The plaintiff is essentially asking that this Court reweigh the evidence and substitute its judgment for that of the military courts. This Court is not empowered or inclined to do so.” As Judge Contreras notes, the standard of review for military cases in District Courts is “tangled.” The opinion does its best to address the case from the varying standards of review to conclude no relief is warranted, but I don’t know if that concluding paragraph was really meant to praise the CAAF opinion. Rather it is probably aimed at repeating the standard that District courts should not re-evalaute the case when the military courts have reviewed it fully and fairly (or whatever standard actually applies). H/t PC

5 Responses to “HN2 Luke Loses Bid to Reverse CAAF in District Court”

I did some work on Luke’s case as an appellate defense counsel (the second Dubay). I take exception to any notion that the military appellate system carefully assessed the data in this case. But that is not just my opinion as a defense counsel…in its opinion CAAF found the MJ’s findings on serology from the second Dubay were “clearly erroneous.” These clearly erroneous findings were also adopted by NMCCA.
Specifically, as noted in the CAAF opinion, the first Dubay MJ determined that there were no deficiencies in Mills’ serology analysis. However, USACIL’s investigation after the first Dubay ultimately revealed that Mills had significant deficiencies with his serology analysis (incorrect 55% of the time according to Mike Doyle’s article, my math had it at 80%). This raw data was presented to the MJ at the second Dubay, was drawn to his attention orally at the end of the hearing, and explicitly noted in the written argument we submitted to him after the hearing. Nevertheless, the MJ found that none of the first Dubay findings on serology should be changed, and offered no explanation as to how he reconciled this with the factual record. Our briefs to NMCCA noted that the MJ’s finding in this regard was wholly contradicted by undisputed facts. Yet, NMCCA adopted them as its own, and did not note the discrepency.
It took CAAF to point out the absurdity of this, and determine that these findings were clearly erroneous. There aren’t too many cases where a judicial ruling is so unsupported that CAAF has to reach down and state that trial level factual findings were clearly erroneous.
I attribute the cognitive dissonance from the MJ and NMCCA to legal realism: judges will do what they want to do, and will conform their perception of reality to fit their desired outcome. Sometimes they are good at dressing it up with “legal analysis,” other times not so much. The second Dubay MJ (the then Chief Judge of the Navy-Marine Corps Trial Judiciary) and the NMCCA panel (comprised of some very experienced and competent judges) had black and white facts in front of them and drawn to their attention, but as those facts were contradictory to their desired outcome they fell into a blind spot.
Can I get an “oorah” for legal realism?
So at the end of the day, any deference to the military appellate system as a whole with regards to the Luke case is highly problematic.

The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive.

But Judge Contreras does explain that:

A few years later, in a case involving a challenge to a court-martial proceeding prior to any conviction, the Supreme Court returned to the subject of the appropriate standard of review. Schlesinger v. Councilman, 420 U.S. 738 (1975). The Court held that collateral relief from the consequences of a court-martial judgment is barred unless it appears that the judgment is void. Id. at 746-48. But a judgment “is not rendered void merely by error . . .”; the defect must be fundamental. Id. The question of whether a judgment may properly be deemed void turns “on the nature of the alleged defect, and the gravity of the harm from which relief is sought.” Id. at 753. “Moreover, both factors must be assessed in light of the deference that should be accorded the judgments of the carefully designed military justice system established by Congress.” Id. Shortly thereafter, in an opinion that neither cites Burns nor Kauffman, the D.C. Circuit adopted the Schlesinger void standard in a non-custodial collateral attack on a conviction by court-martial. Priest v. Sec’y of Navy, 570 F.2d 1013, 1015 (D.C. Cir. 1977).

Not worth arguing about, but sure it is. To the extent that realism is contrary to the notion of the law having inherent value, and judicial decisions being simply a dispassionate reflection of what the “law” requires, vice judicial decisions being a reflection of other norms, be they pragmatic or otherwise. This can be overt in decisions, through something like Law and Economics, which is maybe what you are thinking of. But the principle is the same.

I was the second DuBay trial counsel. As I’ve commented before, I think there are fundamental problems with the work Mills did, and those problems, as Chief Judge Effron noted, could very well “so discredit[] the credibility of a principal government witness that it undermines the integrity of the judicial process.”

However, I think it’s important to note that the type of serological errors Mr. Mills committed made it more likely a negative DNA test resulted from a test that, had it been proper, would have been positive. I don’t know whether it’s “legal realism,” but perhaps the Courts recognized that not all errors are the same.

having the misfortune of a front row seat to this charade for justice, it continues to defy logic and the very rudimentary bounds of common sense that these supposedly esteem gentlemen charged with being the gatekeepers of justice could succumb to this astonishing level of group think and sheepish gullibility.
However, is it simply a case of group think or sheepish gullibility?
Perhaps neither, just maybe government protecto-persecuto-cover syndrome at work and it seems it does routinely reach beyond the bounds of the so called “military justice system” one that even a supreme court justice acknowledged is “inferior justice” in Denedo
Frankly, the entire ordeal although gut wrenching,heartbreaking and sad has now reach a level of futility that one must admit has become laughable from a self- deprecating point of view. After all, when people simply conveniently ignored the facts and routinely conjure up arguments legal or otherwise to continuously and collectively perpetuate such an injustice it begs the question? why do we continue to believe in the long arms of lady justice? when more and more in some quarters justice has been relegated whims of one eyed men wearing a government spectacles.
Oh, what a ramble one might ask? but why attempt to address this situation with the facts of the case or even the law? when its obvious that these inconveniences no longer matter? Hell even the DOD IG investigation is conveniently classified while wholly misusing of the classification system, its clear the fix has always been in on anything that has to do with the government’s crown JEWEL USACIL no matter the cost to the little people.
Hell, according to the 17 page opinion the case even started in 1988! what incompetence!! at tax payers expense

P.S Babu,
Thank you for voicing our collective frustration as you know anyone with close knowledge of this case knows better and please remain assured that we believe ultimately lady justice will return to bend the arc of justice away from the pervue of one eyed men!!!

The views expressed on this blog are offered in the contributors' personal capacities. They do not speak for, and their views should not be imputed to, any other organization, agency, or entity. The views expressed in this blog are those of the individual authors and do not reflect the official policy or position of any military service, the Department of Defense, or the U.S. Government. Click here for important disclaimers.